Category: Criminal Law

A note on Commonwealth Director of Public Prosecutions v Clarke (a pseudonym) [2026] QCA 219. The Court of Appeal upheld findings of grave investigative and prosecutorial misconduct but set aside a permanent stay, ordering instead that the prosecution not proceed without an order of the District Court, because the primary judge erred by not giving the prosecution an opportunity to propose undertakings.

A note on R v Blacket [2026] QCA 223, in which the Court of Appeal allowed an appeal against a majority verdict of guilty of rape and ordered a new trial. A jury note asking what would happen if it could not reach a unanimous verdict was insufficient, in the circumstances of the trial, to found the satisfaction s 59A(2) of the Jury Act 1995 (Qld) requires, and giving the Black direction at the same time was consistent with unanimity still being possible.

A note on R v HDE [2026] QCA 207, in which the Court of Appeal held that ‘a difference in the complainant’s account’ in s 103ZY(1) of the Evidence Act 1977 (Qld) is not confined to the account of the sexual offending. The direction was mandatory in the trial because of a discrepancy about the first alleged rape, and the trial judge did not err in naming two asserted lies about collateral matters as examples when giving it. The conviction appeal was dismissed and leave to appeal against sentence was refused.

A note on R v Ara [2026] QCA 190, in which the Court of Appeal allowed a sentence application against a total effective sentence of nine and one-half years with parole eligibility after six years, imposed for 32 offences committed against 25 victims over 12 days. The respondent relied on the victim-harm sentencing purpose inserted as paragraph (ca) in s 9(1) of the Penalties and Sentences Act 1992 (Qld) from 1 November 2025 to show the sentence was not manifestly excessive. That argument failed, on a conclusion confined to the position where the other purposes of sentencing relied on already covered the recognition of harm, which the Court reasoned had always been a mandatory consideration under s 9(2)(e) and which the amendment was directed at making visible. The Court also held that the uplifted head sentence on the Nagy approach belonged on count 29, armed robbery in company with personal violence, rather than on count 10, burglary and stealing, and that on the applicant’s cooperation, his participation for a lengthy period in a custodial drug program and his age and background there was no justification for postponing parole eligibility past the mid-point. It resentenced to eight and one-half years with eligibility after approximately 40 per cent, declining to go as low as one-third because the offences were committed so soon after a long period in custody. The Court found the sentencing judge was mistaken in thinking a 10 year sentence on count 10 would have carried a mandatory serious violent offence declaration, because burglary and stealing under s 419(5) is not a schedule 1 provision, but the appeal was not allowed on that mistake and the applicant was not seeking to show specific error. Considered obiter is a parenthetical observation that a drug addiction accepted as a cause of offending is not a matter of mitigation, as distinct from material showing a willingness to engage in programs, which is relevant to rehabilitation.

A note on R v Saghir [2026] QCA 194, in which the Court of Appeal construed s 132B of the Evidence Act 1977 (Qld) and then dismissed the appeal on a different point. The appellant was convicted on six of eight counts of advocating terrorism, one count for each video he had posted over eleven months, and acquitted on two. The only element in issue was the requisite intention. Trial counsel raised a Markuleski direction at the end of the summing up, did not press it, and none was given. On the construction of s 132B, in a passage that is considered obiter because the appeal was decided on a different point, the Court concluded that the section is not confined to sexual offence trials, and that what it prohibits is the prescribed direction requiring a doubt about the truthfulness or reliability of a complainant’s evidence on one charge to be carried into the assessment of that evidence generally or on other charges, so a direction addressed to doubt about an element was not prohibited here. The appeal failed because the omission could not realistically have affected the jury’s reasoning to the verdicts of guilt and the trial was not unfair. Because the application was not pressed there was no ruling below, the error of law limb was conceded on appeal, and whether the trial judge’s general duties required the direction was never determined. Also considered obiter is the Court’s agreement with Holmes JA’s rejection in R v WAC [2008] QCA 151 of the proposition that a miscarriage can only follow where the verdicts are irreconcilable.

A note on R v Johnson [2026] QCA 195, in which the Court of Appeal held that a declaration under s 159A(3B) of the Penalties and Sentences Act 1992 (Qld) is a statutorily necessary component of the sentencing order and must be made even where the only possible declaration is that no pre-sentence custody counts, and even where making it is academic. The applicant failed on totality and on manifest excess and succeeded only on the omitted declaration, which won him a varied order and no change to his sentence. On these facts the omission did not vitiate the sentencing discretion, because the cumulative sentence operated as intended with or without the order, so no re-exercise was required; the Court did not state that as a general rule. A s 188 re-opening in the sentencing court is the ordinary fix, and leave should not be sought merely to obtain a correction still available below. The Court also set out, as considered obiter and expressly neither exhaustive nor preferred, a second way of reasoning to a parole eligibility date measured against the total unbroken run of custody from re-entry.

A note on Chief Executive of the Department of the Environment, Tourism, Science and Innovation v Magistrate Kahlert & another [2026] QSC 217, in which Ryan J refused judicial review of a Magistrate’s dismissal of a complaint as out of time. Electing to prosecute an indictable offence summarily engages the limitation provision governing summary proceedings, and compliance with it grounds jurisdiction. The knowledge that starts the clock is knowledge of the offence actually charged, including its mental element, not of a lesser offence in the same section. Witheyman v Van Riet is confined to knowledge of the identity of the offender. The applicant failed on every ground it pressed. Section 497 has since been amended, but section 846 preserves the former section for offences committed before 16 June 2026, so the construction still governs that class.

A note on R v Welton [2026] QCA 164, in which the Court of Appeal set aside three convictions and ordered a new trial because no direction was given about the use of uncharged wrist and waist touching. The prosecution had disavowed reliance on that evidence as showing sexual interest, then addressed the jury on the accused testing the waters. The Court held that the disavowal did not govern, because the way the evidence was put to the jury invited it to reason that way, and that the trial judge’s obligation was not answered by both counsel saying after the address that no direction was necessary. The conclusion is expressly confined to this trial. The Court accepted that there is no absolute rule about tendency directions before distinguishing Hamilton on its features.

A note on Astolfo v OYF [2026] QSC 186, in which the Supreme Court held that neither s 19B(6) of the Bail Act 1980 (Qld) nor the Court’s inherent jurisdiction permits the automatic three business day stay in s 19CA to be extended, so a prosecutor who cannot get the review listed inside that window cannot hold the defendant on the stay. Whether the powers s 19E preserves could produce a different result was not argued or decided.

A note on Farrugia v The King [2026] HCA 28, in which the High Court settled the materiality threshold for specific error and procedural irregularity on a sentence appeal, but dismissed the appeal five to two because the offender, maintaining privilege, led no evidence of the advice and instructions that would have shown whether his counsel was conflicted.